Thursday, June 25, 2015

James Weirick commentary on a recent CAAF decision and the Gillibrand bill

James W. Weirick

James W. Weirick, a retired Marine Corps judge advocate, has written a powerful piece about the recent Woods decision of the U.S. Court of Appeals for the Armed Forces and the failure, for a second time, for Sen. Kerstin Gillibrand's Military Justice Improvement Act (MJIA) to garner the 60 votes to move forward in the Senate.

MJIA would take these important decisions out of the hands of untrained commanders and place the decision to prosecute serious crimes, and other details such as selecting jurors, in the hands of independent, trained, professional military prosecutors.

MJIA will only professionalize military justice and avoid the type of elementary mistakes that occurred in the Woods case, which resulted in the highest military court overturning a conviction in an aggravated sexual assault. Members of the military deserve an impartial and professional system of justice.

1 comment:

I have received some feedback on this article from individuals I have great respect for, and happen to be two of the preeminent authorities on military justice. The issue raised: Senate Amendment 1578, Section 598. In my article I, wrongfully, assumed that the Offices of Chiefs of Staff on Courts-Martial (OCSCM) would be staffed by lawyers. As these individuals correctly pointed out, there is no requirement that individuals assigned to OCSCM be lawyers.

I have a number of responses, as detailed below.

First, I believe that Section 597(a)(4)(A)(i)-(iii) requires that the “determination whether to try such charges by court-martial shall be made by . . . officers of the Armed Forces in grade O-6 or hither who – (i) are available for detail as trial counsel . . . (ii) have significant experience in trials by general or special court-martial; and (iii) are outside the chain of command of the member subject to such charges.” While I believe this section modifies Section 598, I could be wrong.

If Section 598(a)(2)(8) is not modified by Section 597, it should be. This could easily be remedied by adding “as qualified by Section 597(a)(4)(A)(i)-(iii)” immediately after “officers in the grade of O-6 or higher.”

Beyond the statutory language of the rejected amendments, my intent is to ensure that the members – or jurors – are not selected by the commander – or Covenanting Authority. The selection of jurors is a ministerial task that can be accomplished by a number of individuals. Legal training is not as important as experience in the billet. I believe even an experienced Legal Services Specialist, 4421, or Legal Administrative Officer, 4430, (or the equivalent in the other branches) could easily accomplish this task, while vetting questionnaires to exclude potential member such as CAPT Villalobos.

As long as Article 25(b)(2), requires commanders, or Convening Authorities, to select the “best qualified” members, this will continue to be a problem. If commanders are charged with selecting only the “best qualified” members, there is an inherent bias for military judges to keep these members, especially when they are senior in rank to the military judge, as was the case in U.S. v. Woods, where the military judge was a Navy commander.

For to remove CAPT Villalobos, Commander Fulton, the military judge, would have to have overruled the decision by Admiral Ponds to place her on the jury and he would have been required to call into question the objectivity of CAPT Villalobos. In a system where military judges are not assigned for a fixed term, beyond their normal billet assignment, it is difficult to believe that a commander, O-5, would overrule an O-7 to disqualify an O-6. This is not intended to call into question the objectivity of CDR Fulton, rather it is intended to question the system.

There is a reason that federal judges – supreme court, courts of appeals, and district courts – are given life tenure. The reason is to insulate them form outside influence. By contrast, military judges serve for two or three-year terms. This provides little, if any, insulation from outside influence. For example, ADM Ponds is now the Commander, Expeditionary Strike Group 3. In this position he assuredly rates a staff judge advocate. This could be CDR Fulton. What degree of objectivity could a judge exercise knowing that he or she may later work for the commander she rules against?

In sum, I was incorrect in my original reading of the text of MJIA. Nonetheless, any modification of the military-justice system that removes commanders from selecting the jury is a step forward.